Unfair dismissal case
A recent employment tribunal case has highlighted how important it is for an employer to ensure that an employee receives notice of dismissal.
For legal purposes, the date on which an employee’s employment is terminated (the effective date of termination or EDT as it is known) is important to determine the qualifying period for a claim for unfair dismissal and for certain other legal rights. The EDT is also used for the purposes of calculating the time limit for submitting employment tribunal claims relating to the termination of employment.
The employee’s effective date of termination is determined by section 97 of the Employment Rights Act 1996 which says that the EDT is:
- If either the employer or employee gave notice to terminate the employment, the date on which the notice period expires.
- If the employment terminates immediately, the date on which that termination takes effect.
- If the employee is employed under a limited-term contract that terminates by virtue of the limiting event without being renewed under the same contract, the date on which the termination takes effect.
As mentioned, the EDT is used to identify if the employee has the 2-year qualifying period to bring an unfair dismissal claim in the employment tribunal. It is also used to calculate when an employee must present a claim for unfair dismissal.
To bring a claim of unfair dismissal in the employment tribunal, an employee must commence their claim (by starting the Acas early conciliation procedure) within 3 months of the effective date of termination otherwise they will be out of time.
In most cases, the decision to dismissal will be communicated to the employee in person and therefore the effective date of termination will not be an issue. Where problems tend to arise is when it is not possible for the employee to be informed in person and other methods of communication are relied upon by the employer. It then becomes a question of looking at what the employee’s contract says (if anything) about when notice takes effect, the method of communication and all the facts of the case.
Where summary dismissal (i.e. dismissal without notice) by letter, is concerned, however, the case of Brown v Southall & Knight  IRLR 130 established that, unless there is evidence that an employee has deliberately not opened the letter, the effective date of termination will be the date on which the employee learns of their dismissal or has a reasonable opportunity of learning of it. Therefore, if the employee is away on holiday, for example, when the letter is sent, the effective date of termination for statutory purposes will be the date the employee returns from holiday and receives the letter.
Ms Sault was employed by Empire Amusements & Cheeky Monkey’s Soft Play Centre (Empire). In early 2020, Ms Sault was on sick leave and had not been in touch with her employer for several weeks due to being unwell. As such, Ms Sault’s employer claimed that, on 6 March 2020, they hand delivered a letter to her home saying that unless they heard from her in 7 days, they would have to terminate her employment. On receiving no response, the employer said they then hand delivered a further letter to Ms Sault’s home on 15 March 2020 stating that her employment had terminated.
Ms Sault, however, claimed she never received these letters and that she was unaware that she had been dismissed.
Shortly afterwards, Ms Sault arranged for her friend to hand in a sick note to work which was accepted by her employer without question. Then, on 23 March 2020, Ms Sault received a letter from her employer informing her that she did not qualify for sick pay and enclosing a form for her to complete to claim SSP from the government. Neither the letter or the form referred to the previous correspondence allegedly sent or her dismissal.
Ms Sault claimed that it was not until she returned to work on 4 July 2020, when she was told by the café manager that she had been replaced, that she became aware of her dismissal.
Ms Sault subsequently brought an unfair dismissal claim against Empire and put 4 July 2020 as the effective date of termination because she said this was the date she became aware her employment had ended. Empire, in its defence, claimed that it had terminated her employment summarily on 15 March 2020, when it delivered the letter of dismissal to her house, and that Ms Sault was out of time because she had presented her claim more than 3 months after this date.
After considering all the evidence of the case and the legal principle set out in the case of Brown (mentioned above), the Judge concluded that Ms Sault neither read or received the letters of the 6 and 14 March 2020 and that her employment did not terminate until 4 July 2020 when she was told verbally on her return to work that her employment had terminated. Accordingly, her claim for unfair dismissal had been submitted on time.
The Judge decided that the employer’s behaviour after 14 March 2020 was not consistent with an employer who had allegedly terminated an employee’s employment. Ms Sault’s behaviour, on the other hand, was considered consistent with an employee who was unaware she had been dismissed. The Judge also took into consideration that the employer had no proof that it had hand-delivered the letters in question.
Points to note and action to take
- One of the issues that went against the employer in this case is that they had no evidence to show that the letter of dismissal had been hand delivered. When giving evidence, the person delivering the letters admitted they had not tried to knock on the employee’s door to find out if she was in, nor had they taken any photo or video of themselves posting the letters or brought a witness with them. This lack of evidence, coupled with the inconsistencies in the employer’s behaviour after the employee was allegedly dismissed, led the tribunal to conclude that the employer had not actually delivered the letters at all.
- In order to avoid any dispute as to whether an employee has received notice of termination or not or when notice takes effect, we recommend, wherever possible, notifying the employee of their dismissal and handing the termination letter to them in person. The letter should confirm the date of dismissal to avoid any ambiguity regarding the actual date of termination.
- Where it is not possible to give notice in person, we recommend sending the termination letter by recorded or special delivery which requires a signature on receipt so that you have both proof of delivery and receipt. If you have proof that a document has been correctly posted to an employee, the burden of proving that it has not been received will lie with the employee.
- Notice of termination can be sent by email, unless the employee’s contract states that service of notice is not effective if given by email. If sending notice by email, you should always request a delivery and read receipt as well as requesting that the employee acknowledge receipt by return email.
- Consider including provisions in your employment contracts which deal with the mechanics of giving notice. As a minimum, we recommend specifying that notice of termination must be given in writing. For senior employees with long notice periods, you may wish to consider setting out when notice is deemed to be effective. This will vary depending on the method of service. For example, a typical clause may say that notice served by first class post will be deemed to be effective the next working day. The benefit of this type of provision is that it means that notice of termination will be contractually effective on the date it is deemed to be received under the contract, even if it is not actually received or opened until a later date. It is important to mention, however, that the contractual termination date and the effective date of termination for statutory purposes, will not always be the same.
- Reading between the lines of this case, it seems the employer decided to terminate Ms Sault’s employment because she had not been in contact during her sickness absence for several weeks. Whereas it can be frustrating when an employee does not keep in contact during their sickness absence and/or fails to follow sickness reporting procedures, there may be very good reasons for their not getting in touch (in Ms Sault’s case she was in hospital recovering from a mental illness). It is therefore important to investigate the reasons for the employee’s lack of communication first, before taking any formal steps and to seek advice, if in doubt.
- A final, but important, point to make is that we strongly recommend that employers seek advice first before terminating the employment of an employee on sick leave. Dismissing an employee while on sick leave can potentially rise to claims of unfair dismissal and/or disability discrimination and therefore caution needs to be exercised. An employer should first follow a fair absence management procedure and, where absence is long term and/or is connected to a potential disability, seek medical advice, and consider reasonable adjustments.
If you need advice on any of the issues covered in this article, please get in touch with the team at Real Employment Law Advice.